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  Exhibit 4.4    
    


 
 

  AMENDED AND RESTATED    
    
    TRUST AGREEMENT    
    
    among    
    
    TCF FINANCIAL CORPORATION, as Depositor,    
    
    WILMINGTON TRUST COMPANY,    
    
    as Property
Trustee,    
    
    WILMINGTON TRUST COMPANY,    
    
    as Delaware Trustee,    
    
    THE ADMINISTRATIVE TRUSTEES NAMED HEREIN,    
    
    and    
    
    THE SEVERAL HOLDERS (AS DEFINED HEREIN)    


    Dated as of August [    •    ], 2008    
    
    TCF CAPITAL I    









TCF
CAPITAL I

Certain Sections of this Trust Agreement relating to

Sections 310 through 318 of the

Trust Indenture Act of 1939: 



							
	Trust Indenture

Act Section 	 	 
	 	Trust Agreement

Section 
	 	 (§) 310
	  (a)(1)	 	 	8.7(a)
	 	 	
	  (a)(2)	 	 	8.7(a)
	 	 	
	  (a)(3)	 	 	8.9
	 	 	
	  (a)(4)	 	 	2.7(a)(ii)
	 	 	
	  (a)(5)	 	 	10.11(a)
	 	 	
	  (b)	 	 	8.8
	 	 (§) 311
	  (a)	 	 	8.13
	 	 	
	  (b)	 	 	8.13
	 	 	
	  (c)	 	 	Not Applicable
	 	 (§) 312
	  (a)	 	 	5.7
	 	 	
	  (b)	 	 	5.7
	 	 	
	  (c)	 	 	5.7
	 	 (§) 313
	  (a)	 	 	8.14(a)
	 	 	
	  (b)	 	 	8.14(a)
	 	 	
	  (c)	 	 	10.9
	 	 	
	  (d)	 	 	8.14(b)
	 	 (§) 314
	  (a)	 	 	8.15
	 	 	
	  (b)	 	 	Not Applicable
	 	 	
	  (c)(1)	 	 	8.16
	 	 	
	  (c)(2)	 	 	8.16
	 	 	
	  (c)(3)	 	 	Not Applicable
	 	 	
	  (d)	 	 	Not Applicable
	 	 	
	  (e)	 	 	1.1, 8.16
	 	 (§) 315
	  (a)	 	 	8.1(a), 8.3(a)
	 	 	
	  (b)	 	 	8.2,10.9
	 	 	
	  (c)	 	 	8.1(a)
	 	 	
	  (d)	 	 	8.1, 8.3
	 	 	
	  (e)	 	 	Not Applicable
	 	 (§) 316
	  (a)	 	 	Not Applicable
	 	 	
	  (a)(1)(A)	 	 	Not Applicable
	 	 	
	  (a)(1)(B)	 	 	Not Applicable
	 	 	
	  (a)(2)	 	 	Not Applicable
	 	 	
	  (b)	 	 	5.14
	 	 	
	  (c)	 	 	6.7
	 	 (§) 317
	  (a)(1)	 	 	Not Applicable
	 	 	
	  (a)(2)	 	 	Not Applicable
	 	 	
	  (b)	 	 	5.9
	 	 (§) 318
	  (a)	 	 	10.11






Note:
This reconciliation and tie sheet shall not, for any purpose, be deemed to be a part of the Trust. 








 




































 TABLE OF CONTENTS  





					
	 
	 	 
	 	Page 
	 ARTICLE I
	 	 DEFINED TERMS
	 	1
	 Section 1.1
	 	 Definitions.
	 	

1
	 ARTICLE II
	 	 CONTINUATION OF THE TRUST
	 	

7
	 Section 2.1
	 	 Name.
	 	

7
	 Section 2.2
	 	 Office of the Delaware Trustee; Principal Place of Business.
	 	7
	 Section 2.3
	 	 Initial Contribution of Trust Property; Organizational Expenses.
	 	8
	 Section 2.4
	 	 Issuance of the Capital Securities.
	 	8
	 Section 2.5
	 	 Issuance of the Common Securities; Subscription and Purchase of Debentures.
	 	8
	 Section 2.6
	 	 Declaration of Trust.
	 	8
	 Section 2.7
	 	 Authorization to Enter into Certain Transactions.
	 	9
	 Section 2.8
	 	 Assets of Trust.
	 	11
	 Section 2.9
	 	 Title to Trust Property.
	 	11
	 ARTICLE III
	 	 PAYMENT ACCOUNT
	 	

11
	 Section 3.1
	 	 Payment Account.
	 	

11
	 ARTICLE IV
	 	 DISTRIBUTIONS; REDEMPTION
	 	

12
	 Section 4.1
	 	 Distributions.
	 	

12
	 Section 4.2
	 	 Redemption.
	 	12
	 Section 4.3
	 	 Subordination of Common Securities.
	 	14
	 Section 4.4
	 	 Payment Procedures.
	 	15
	 Section 4.5
	 	 Tax Returns and Reports.
	 	15
	 Section 4.6
	 	 Payment of Expenses of the Trust.
	 	15
	 Section 4.7
	 	 Payments under Indenture or Pursuant to Direct Actions.
	 	15
	 ARTICLE V
	 	 TRUST SECURITIES CERTIFICATES
	 	

16
	 Section 5.1
	 	 Initial Ownership.
	 	

16
	 Section 5.2
	 	 The Trust Securities Certificates.
	 	16
	 Section 5.3
	 	 Execution and Delivery of Trust Securities Certificates.
	 	16
	 Section 5.4
	 	 Registration of Transfer and Exchange of Capital Securities Certificate.
	 	16
	 Section 5.5
	 	 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.
	 	17
	 Section 5.6
	 	 Persons Deemed Securityholders.
	 	17
	 Section 5.7
	 	 Access to List of Securityholders' Names and Addresses.
	 	17
	 Section 5.8
	 	 Maintenance of Office or Agency.
	 	18
	 Section 5.9
	 	 Appointment of Paying Agent.
	 	18
	 Section 5.10
	 	 Ownership of Common Securities by Depositor.
	 	18
	 Section 5.11
	 	 Book-Entry Capital Securities Certificates; Common Securities Certificate.
	 	18
	 Section 5.12
	 	 Notices to Clearing Agency.
	 	19
	 Section 5.13
	 	 Definitive Capital Securities Certificates.
	 	19
	 Section 5.14
	 	 Rights of Securityholders.
	 	20
	 Section 5.15
	 	 CUSIP Numbers.
	 	22
	 ARTICLE VI
	 	 ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
	 	

22
	 Section 6.1
	 	 Limitations on Voting Rights.
	 	

22
	 Section 6.2
	 	 Notice of Meetings.
	 	23
	 Section 6.3
	 	 Meetings of Capital Securityholders.
	 	23
	 Section 6.4
	 	 Voting Rights.
	 	23
	 Section 6.5
	 	 Proxies, etc.
	 	23
	 Section 6.6
	 	 Securityholder Action by Written Consent.
	 	24
	 Section 6.7
	 	 Record Date for Voting and Other Purposes.
	 	24
	 Section 6.8
	 	 Acts of Securityholders.
	 	24
	 Section 6.9
	 	 Inspection of Records.
	 	25





i







 




					
	 
	 	 
	 	 

	 ARTICLE VII
	 	 REPRESENTATIONS AND WARRANTIES
	 	25
	 Section 7.1
	 	 Representations and Warranties of the Property Trustee and the Delaware Trustee.
	 	

25
	 Section 7.2
	 	 Representations and Warranties of Depositor.
	 	26
	 ARTICLE VIII
	 	 THE TRUSTEES
	 	

26
	 Section 8.1
	 	 Certain Duties and Responsibilities.
	 	

26
	 Section 8.2
	 	 Certain Notices.
	 	27
	 Section 8.3
	 	 Certain Rights of Property Trustee.
	 	28
	 Section 8.4
	 	 Not Responsible for Recitals or Issuance of Securities.
	 	29
	 Section 8.5
	 	 May Hold Securities.
	 	29
	 Section 8.6
	 	 Compensation; Indemnity; Fees.
	 	29
	 Section 8.7
	 	 Corporate Property Trustee Required; Eligibility of Trustees.
	 	30
	 Section 8.8
	 	 Conflicting Interests.
	 	31
	 Section 8.9
	 	 Co-Trustees and Separate Trustee.
	 	31
	 Section 8.10
	 	 Resignation and Removal; Appointment of Successor.
	 	32
	 Section 8.11
	 	 Acceptance of Appointment by Successor.
	 	33
	 Section 8.12
	 	 Merger, Conversion, Consolidation or Succession to Business.
	 	34
	 Section 8.13
	 	 Preferential Collection of Claims Against Depositor or Trust.
	 	34
	 Section 8.14
	 	 Reports by Property Trustee.
	 	34
	 Section 8.15
	 	 Reports to the Property Trustee.
	 	35
	 Section 8.16
	 	 Evidence of Compliance with Conditions Precedent.
	 	35
	 Section 8.17
	 	 Number of Trustees.
	 	35
	 Section 8.18
	 	 Delegation of Power.
	 	35
	 ARTICLE IX
	 	 TERMINATION, LIQUIDATION AND MERGER
	 	

36
	 Section 9.1
	 	 Termination Upon Expiration Date.
	 	

36
	 Section 9.2
	 	 Early Termination.
	 	36
	 Section 9.3
	 	 Termination.
	 	36
	 Section 9.4
	 	 Liquidation.
	 	36
	 Section 9.5
	 	 Mergers, Consolidations, Amalgamations or Replacements of the Trust.
	 	37
	 ARTICLE X
	 	 MISCELLANEOUS PROVISIONS
	 	

38
	 Section 10.1
	 	 Limitation of Rights of Securityholders.
	 	

38
	 Section 10.2
	 	 Liability of the Common Securityholder.
	 	38
	 Section 10.3
	 	 Amendment.
	 	38
	 Section 10.4
	 	 Separability.
	 	39
	 Section 10.5
	 	 Governing Law.
	 	40
	 Section 10.6
	 	 Payments Due on Non-Business Day.
	 	40
	 Section 10.7
	 	 Successors.
	 	40
	 Section 10.8
	 	 Headings.
	 	40
	 Section 10.9
	 	 Reports, Notices and Demands.
	 	40
	 Section 10.10
	 	 Agreement Not to Petition.
	 	41
	 Section 10.11
	 	 Trust Indenture Act; Conflict with Trust Indenture Act.
	 	41
	 Section 10.12
	 	 Acceptance of Terms of Trust Agreement, Guarantee and Indenture.
	 	41
	 Section 10.13
	 	 Holders are Parties.
	 	41
	 Section 10.14
	 	 Treatment of Trust as Grantor Trust and Debentures as Debt for Federal Income Tax Purposes.
	 	42
	 Section 10.15
	 	 Counterparts.
	 	42





ii













































  
        AMENDED AND RESTATED TRUST AGREEMENT, dated as of August [    •    ], 2008, among (i) TCF Financial Corporation, a
Delaware corporation (including any successors or assigns, the "Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation, as property trustee (in such capacity, the "Property
Trustee" and, in its separate corporate capacity and not in its capacity as Property Trustee, the "Bank"), (iii) Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee
(the "Delaware Trustee"), (iv) James S. Broucek, an individual, and Christy A. Powers, an individual, each of whose address is c/o TCF Financial Corporation, 200 Lake
Street East, Wayzata, Minnesota 55391-1693 (each, an "Administrative Trustee," and, collectively, the "Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees, collectively, the "Trustees") and (v) the several Holders, as hereinafter defined. 


W I T N E S S E T H  


        WHEREAS, the Depositor and certain of the trustees have heretofore duly declared and established a statutory trust pursuant to the Delaware Statutory Trust Act by
entering into that certain Trust Agreement, dated as of [                        ] 
[    •    ], 2008 (the "Original Trust
Agreement"), and by the execution and filing with the Secretary of State of the State of Delaware of the Certificate of Trust, filed on
[                        ] [    •    ], 2008 (the "Certificate of Trust"), each
attached as Exhibit A; 


        WHEREAS,
the parties hereto desire to amend and restate the Original Trust Agreement in its entirety as set forth herein to provide for, among other things, (i) the issuance of
the Common Securities by the Trust to the Depositor, (ii) the issuance and sale of the Capital Securities by the Trust pursuant to the Underwriting Agreement and (iii) the acquisition by
the Trust from the Depositor of all of the right, title and interest in the Debentures; and 



        NOW
THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, each
party, for the
benefit of the other parties and for the benefit of the Securityholders, hereby amends and restates the Original Trust Agreement in its entirety and agrees as follows: 


 ARTICLE I  


 DEFINED TERMS  


        Section 1.1    Definitions.    


        For
all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires: 



        (a)   the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; 


        (b)   all
other terms used herein that are defined in the Trust Indenture Act, either directly or by reference thereto, have the meanings assigned to them therein; 



        (c)   unless
the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Trust Agreement; and 


        (d)   the
words "herein", "hereof" and "hereunder" and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or
other subdivision. 




        "Act" has the meaning specified in Section 6.8. 



        "Additional Amount" means, with respect to Trust Securities of a given Liquidation Amount and/or a given period, the amount of Additional
Interest paid by the Depositor on a Like Amount of Debentures for such period. 


        "Additional Interest" has the meaning specified in the Supplemental Indenture. 


        "Administrative Trustee" means each of the individuals identified as an "Administrative Trustee" in the preamble to this Trust Agreement
solely in such individual's capacity as Administrative Trustee of 







 



the
Trust and not in such individual's individual capacity, or such Administrative Trustee's successor in interest in such capacity, or any successor or additional administrative trustee appointed as
herein provided. 


        "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. 


        "Bank" has the meaning specified in the preamble to this Trust Agreement. 


        "Bankruptcy Event" means, with respect to any Person: 



        (a)   the
entry of a decree or order for relief in respect to such Person by a court having jurisdiction in the premises in an involuntary case under any applicable
bankruptcy, insolvency or reorganization law now or hereafter in effect of the United States of America or any political subdivision thereof, and such decree or order shall have continued unstayed and
in effect for a period of 60 consecutive days; or 


        (b)   the
commencement by such Person of a voluntary case under any applicable bankruptcy, insolvency or reorganization law now or hereafter in effect of the United States of
America or a political subdivision thereof, or consent to the entry of an order for relief in an involuntary case under any such law. 




        "Bankruptcy Laws" has the meaning specified in Section 10.10. 



        "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the Board of Directors or officers of the Depositor to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification, and delivered to the Trustees. 


        "Book-Entry Capital Securities Certificates" means a beneficial interest in the Capital Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.11. 



        "Business Day" means a day other than a Saturday or Sunday or other day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or a day on which the Corporate Trust Office of the Property Trustee or the Debenture Trustee is closed for business or a day on
which dealings in deposits in U.S. dollars are not transacted in the London interbank market. 


        "Capital Securities Certificate" means a certificate evidencing ownership of Capital Securities, substantially in the form attached as
Exhibit B. 


        "Capital Security" means an undivided beneficial ownership interest in the assets of the Trust, having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein. 


        "Capital Securityholder" means a Holder of Capital Securities. 


        "Certificate Depository Agreement" means the agreement among the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust Securities Certificates, as the same may be amended and supplemented from time to time. 


2







 

        "Certificate of Trust" has the meaning specified in the recitals hereof, as amended from time to time. 



        "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository Trust Company will be the initial Clearing Agency. 


        "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. 


        "Closing Date" means the date of execution and delivery of this Trust Agreement. 


        "Code" means the Internal Revenue Code of 1986, as amended. 


        "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time. 


        "Common Securities Certificate" means a certificate evidencing ownership of Common Securities, substantially in the form attached as
Exhibit C. 


        "Common Security" means an undivided beneficial ownership interest in the assets of the Trust, having a Liquidation Amount of $25 and the
rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein. 


        "Common Securityholder" means a Holder of Common Securities. 



        "Corporate Trust Office" means (i) when used with respect to the Property Trustee, the principal office of the Property Trustee
located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600 and (ii) when used with respect to the Debenture Trustee, the principal office of
the Debenture Trustee located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600. 


        "Debenture Event of Default" means an "Event of Default" as defined in the Indenture (as such definition is amended by the provisions of
the Supplemental Indenture). 


        "Debenture Maturity Date" means the "Maturity Date" as defined in the Supplemental Indenture. 


        "Debenture Repayment Date" means, with respect to any Debentures to be repaid under the Indenture, any date fixed for repayment under the
Indenture. 


        "Debenture Trustee" means Wilmington Trust Company, a Delaware banking corporation, as trustee under the Indenture, and any successor
trustee appointed as provided therein. 


        "Debentures" means the initial [                        ] aggregate principal amount, and any
additional authorized
aggregate principal amount, of the Depositor's Junior Subordinated Notes, Series I, issued pursuant to the Indenture, a form of which is attached as Exhibit D. 


        "Definitive Capital Securities Certificates" means either or both (as the context requires) of (a) Capital Securities Certificates
issued as Book-Entry Capital Securities Certificates as provided in Section 5.11(a) and (b) Capital Securities Certificates issued in certificated, fully registered form as
provided in Section 5.13. 


        "Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. 3801,  et seq., as it may be amended from time to time.



3







 

        "Delaware Trustee" means the Person identified as the "Delaware Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware Trustee appointed as herein provided. 


        "Depositor" has the meaning specified in the preamble to this Trust Agreement. 


        "Distribution Date" has the meaning specified in Section 4.1(a). 


        "Distributions" means amounts payable in respect of the Trust Securities as provided in Section 4.1. 



        "Early Termination Event" has the meaning specified in Section 9.2. 


        "Event of Default" means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): 



        (a)   the
occurrence of a Debenture Event of Default; or 


        (b)   default
by the Property Trustee in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 30 days; or 


        (c)   default
by the Property Trustee in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or 


        (d)   default
in the performance, or breach, in any material respect, of any covenant or warranty of the Trustees in this Trust Agreement (other than a covenant or warranty a
default in the performance or breach of which is dealt with in clause (b) or (c) above) and continuation of such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the defaulting Trustee or Trustees by the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Capital Securities, a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or 


        (e)   the
occurrence of a Bankruptcy Event with respect to the Property Trustee and the failure by the Depositor to appoint a successor Property Trustee within 90 days
thereof. 




        "Expiration Date" has the meaning specified in Section 9.1. 


        "Federal Reserve" means the Board of Governors of the Federal Reserve System, as from time to time constituted, or if at any time after
the execution of this Trust Agreement the Federal Reserve is not existing and performing the duties now assigned to it, then the body performing such duties at such time. 


        "Final Debenture Repayment Date" means the "Maturity Date" as defined in the Supplemental Indenture. 



        "Guarantee" means the Guarantee Agreement executed and delivered by the Depositor and Wilmington Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for the benefit of the Holders of the Trust Securities, as amended from time to time. 


        "Indenture" means the Indenture, dated as of August [            ], 2008, between the Depositor and the
Debenture Trustee, as trustee, as amended or supplemented from time to time. 



        "Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever. 


4







 

        "Like Amount" means (a) with respect to a redemption of Trust Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in accordance with the Indenture the proceeds of which will be used to pay the Redemption Price of such Trust Securities, and
(b) with respect to a distribution of Debentures to Holders of Trust Securities in connection with a dissolution or liquidation of the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Debentures are distributed. 


        "Liquidation Amount" means the stated amount of $25 per Trust Security. 



        "Liquidation Date" means the date on which Debentures are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.4(a). 


        "Liquidation Distribution" has the meaning specified in Section 9.4(d). 


        "1940 Act" means the Investment Company Act of 1940, as amended. 


        "Officers' Certificate" means a certificate signed by any two of the following: Chairman of the Board, the Chief Executive Officer, the
President, any Vice Chairman of the Board, the Chief Financial Officer, any Vice President, the Treasurer, the Secretary, the Controller, any Assistant Controller, any Assistant Treasurer or any
Assistant Secretary of the Company (as each term is used in the Indenture). Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include: 



        (a)   a
statement that each individual signing such Officers' Certificate has read such covenant or condition and the definitions herein relating thereto; 



        (b)   a
brief statement of the nature and scope of the examination or investigation upon which the statements or opinions contained in such Officers' Certificate are based; 


        (c)   a
statement that, in the opinion of each individual signing the Officer's Certificate, he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has been complied with; and 


        (d)   a
statement as to whether, in the opinion of each individual signing the Officers' Certificate, such condition or covenant has been complied with. 




        "Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Trust, the Property Trustee or the Depositor, and who
shall be reasonably acceptable to the Property Trustee. 


        "Original Trust Agreement" has the meaning specified in the recitals to this Trust Agreement. 


        "Outstanding," when used with respect to Trust Securities, means, as of the date of determination, all Trust Securities represented by
Trust Securities Certificates theretofore executed and delivered under this Trust Agreement, except: 



        (a)   Trust
Securities represented by Trust Securities Certificates theretofore cancelled by the Securities Registrar or delivered to the Securities Registrar for
cancellation; 


        (b)   Trust
Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Property Trustee or any Paying Agent for the
Holders of such Trust Securities; provided that, if such Trust Securities are to be redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and 


        (c)   Trust
Securities which have been paid or that are represented by Trust Securities Certificates in exchange for or in lieu of which other Trust Securities Certificates
have been executed and delivered pursuant to this Trust Agreement, including pursuant to Sections 5.4, 5.5, 5.11 and 5.13; provided,  however, that in
determining whether the Holders of the requisite 



5







 




Liquidation
Amount of the Outstanding Capital Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Capital Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be disregarded and deemed not to be Outstanding, except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or waiver, only Capital Securities that such Trustee actually knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the Outstanding Capital Securities are owned by the Depositor, one or more of the Trustees and/or any such Affiliate. Capital Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Administrative Trustees the pledgee's right so to act with respect to such
Capital Securities and that the pledgee is not the Depositor or any Affiliate of the Depositor. 




        "Owner" means each Person who is the beneficial owner of a Book-Entry Capital Securities Certificate as reflected in the
records of the Clearing Agency or, if a Clearing Agency Participant is not the beneficial owner, then as reflected in the records of a Person maintaining an account with such Clearing Agency (directly
or indirectly, in accordance with the rules of such Clearing Agency). 


        "Paying Agent" means any paying agent or co-paying agent appointed pursuant to Section 5.9 and shall initially be the
Bank. 


        "Payment Account" means a segregated non-interest-bearing corporate trust account maintained by the Property Trustee with the
Bank in its corporate trust department for the benefit of the Securityholders in which all amounts paid in respect of the Debentures will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Securityholders in accordance with Sections 4.1 and 4.2. 



        "Person" means any individual, corporation, partnership, joint venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof. 


        "Property Trustee" means the Person identified as the "Property Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust heretofore created and continued hereunder and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed
as herein provided. 


        "Redemption Date" means, with respect to any Trust Security to be redeemed, the date fixed for such redemption by or pursuant to this
Trust Agreement; provided that each Debenture Repayment Date and the Debenture Maturity Date shall be a Redemption Date for a Like Amount of Trust
Securities. 


        "Redemption Price" means, with respect to any Trust Security, the amount paid by the Depositor upon the concurrent redemption of a Like
Amount of Debentures, plus accumulated and unpaid Distributions to the Redemption Date, allocated on a pro rata basis (based on Liquidation Amounts)
among the Trust Securities. 


        "Relevant Trustee" shall have the meaning specified in Section 8.10. 


        "Securities Register" and "Securities Registrar" have the respective meanings specified in
Section 5.4. 


        "Securityholder" or "Holder" means a Person in whose name a Trust Security or Trust
Securities Certificate is registered in the Securities Register; any such Person shall be a beneficial owner within the meaning of the Delaware Statutory Trust Act;  provided, however, that in determining whether the Holders of the requisite amount of Capital Securities
have voted on any matter provided for in this Trust Agreement, then for the purpose of any such determination, so long as Definitive Capital 


6







 



Securities
Certificates have not been issued, the term Securityholders or Holders as used herein shall refer to the Owners. 


        "Supplemental Indenture" means the Supplemental Indenture, dated as of
August [    •    ], 2008, to the Indenture, between the Depositor and the Debenture Trustee. 


        "Trust" means the Delaware statutory trust continued hereby and identified on the cover page to this Trust Agreement. 



        "Trust Agreement" means this Amended and Restated Trust Agreement, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including (i) all exhibits hereto and (ii) for all purposes of this Trust Agreement and any such modification, amendment or supplement, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this Trust Agreement and any such modification, amendment or supplement, respectively. 


        "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed;  provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. 


        "Trust Property" means (a) the Debentures, (b) any cash on deposit in, or owing to, the Payment Account and (c) all
proceeds and rights in respect of the foregoing. 


        "Trust Securities Certificate" means any one of the Common Securities Certificates or the Capital Securities Certificates. 


        "Trust Security" means any one of the Common Securities or the Capital Securities. 



        "Trustees" means, collectively, the Property Trustee, the Delaware Trustee and the Administrative Trustees. 


        "Underwriting Agreement" means the underwriting agreement, dated as of
[                        ] [    •    ], 2008, among the Trust, the Depositor and
RBC Capital Markets Corporation,
as representative of the underwriters named therein. 


        "U.S. Person" means a United States person as defined in Section 7701(a)(30) of the Code. 


        "Vice President" shall have the meaning given in the Indenture. 


 ARTICLE II  


 CONTINUATION OF THE TRUST  


        Section 2.1    Name.    



        The
Trust continued hereby shall be known as "TCF Capital I," as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders
of Trust Securities and the other Trustees, in which name the Trustees engage in the transactions contemplated hereby, make and execute contracts and other instruments on behalf of the Trust and sue
and can be sued. 


        Section 2.2    Office of the Delaware Trustee; Principal Place of Business.    


        The
address of the Delaware Trustee in the State of Delaware is c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600,
Attention: Corporate Trust Administration, or such other address in the State of Delaware as the Delaware Trustee may designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is c/o TCF Financial Corporation, 200 Lake Street East, Wayzata, Minnesota 55391-1693. 


7









 



































  
        Section 2.3    Initial Contribution of Trust Property; Organizational Expenses.    


        The
Property Trustee acknowledges receipt in trust from the Depositor in connection with the Original Trust Agreement of the sum of $10, which constituted the initial Trust Property. The
Depositor shall pay organizational expenses of the Trust as they arise or shall, upon request of any Trustee, promptly reimburse such Trustee for any such expenses paid by such Trustee. The Depositor
shall make no claim upon the Trust Property for the payment of such expenses. 


        Section 2.4    Issuance of the Capital Securities.    


        The
Depositor, on behalf of the Trust and pursuant to the Original Trust Agreement, executed and delivered the Underwriting Agreement. Contemporaneously with the execution and delivery
of this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2 and deliver to the underwriters Capital Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency, in an aggregate amount of [            ] Capital Securities having an aggregate Liquidation Amount of
$[                        ], against receipt of an aggregate purchase price plus accrued distributions from
August [    •    ], 2008, if any, on such Capital Securities of $[    •    ]
which amount such Administrative Trustee shall promptly deliver to the Property Trustee. On any one or more dates after the execution and delivery of this Trust Agreement additional Capital Securities
Certificates representing Capital Securities may be issued in accordance with Section 5.2, registered in the name of the nominee of the initial Clearing Agency, against receipt by the Property
Trustee of the purchase price that is determined by the Depositor. Such additional Capital Securities may be issued at a different offering price and accrue distributions from a different date than
the Capital Securities being issued hereby. 


        Section 2.5    Issuance of the Common Securities; Subscription and Purchase of Debentures.    


        Contemporaneously
with the execution and delivery of this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2 and
deliver to the Depositor Common Securities Certificates, registered in the name of the Depositor, in an aggregate amount of 10 Common Securities having an aggregate Liquidation Amount of $10,000
against payment by the Depositor of an aggregate purchase price of $10,000, plus accrued distributions from August [    •    ], 2008, if
any, on such Common Securities, which amount such Administrative Trustee shall promptly deliver to the Property Trustee. Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the name of the Trust and having an aggregate principal amount equal to $
[                        ], and, in
satisfaction of the purchase price plus accrued interest from August [    •    ], 2008, if any, for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of $[    •    ] (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence of this Section 2.5). In connection with any subsequent issuance of Capital
Securities as set forth in the third sentence of Section 2.4, an Administrative Trustee, on behalf of the Trust, contemporaneously with any such additional issuance, shall subscribe to and
purchase from the Depositor Debentures, registered in the name of the Trust, having an aggregate principal amount equal to the aggregate Liquidation Amount of Capital Securities being issued by the
Trust pursuant to the third sentence of Section 2.4 against payment of a purchase price equal to the aggregate purchase prices of the Capital Securities being so issued. 



        Section 2.6    Declaration of Trust.    


        The
exclusive purposes and functions of the Trust are (a) to issue and sell Trust Securities, (b) to use the proceeds from such sale to acquire the Debentures and
(c) to engage in those activities necessary or incidental thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Trustees hereby accept 


8







 



such
appointment. The Property Trustee hereby declares that it will hold the Trust Property in trust upon and subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and duties set forth herein and in accordance with applicable law with respect to accomplishing the purposes of the Trust.
The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Property Trustee or the Administrative Trustees
set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Delaware Statutory Trust
Act. 


        Section 2.7    Authorization to Enter into Certain Transactions.    



        (a)   The
Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of
this Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined
by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following: 


          (i)  As
among the Trustees, each Administrative Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the
following matters: 



        (A)  the
issuance and sale of the Trust Securities; 



        (B)  causing
the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of the Trust; 


        (C)  assisting
in the registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust Indenture Act; 


        (D)  assisting
in the listing, if any, of the Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be
determined by the Depositor and the registration of the Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing; 


        (E)  the
sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with
this Trust Agreement; 


        (F)  the
appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement; 


        (G)  registering
transfer of the Trust Securities in accordance with this Trust Agreement; 


        (H)  to
the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware; 


        (I)   unless
otherwise required by the Delaware Statutory Trust Act or the Trust Indenture Act, executing on behalf of the Trust (either acting alone or together with any or
all of the Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and 




9







 


        (J)   taking
any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust
Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder). 




         (ii)  As
among the Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: 



        (A)  the
establishment of the Payment Account; 


        (B)  the
receipt of the Debentures; 


        (C)  the
collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account; 


        (D)  the
distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities; 


        (E)  the
exercise of all of the rights, powers and privileges of a holder of the Debentures; 


        (F)  the
sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement; 


        (G)  the
distribution of the Trust Property in accordance with the terms of this Trust Agreement; and 



        (H)  to
the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware. 




        Except
as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees
set forth in Section 2.7(a)(i). 


        (b)   So
long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In particular, the Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust" for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) invest any
proceeds received by the Trust from holding the Debentures (it being understood that the Trust and Trustees shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of
this Trust Agreement and of the Trust Securities), (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust
Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust
Agreement or by the terms of the Trust Securities) or (x) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust
Securities. The Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders. 


        (c)   In
connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the 



10







 




following
(and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects): 



          (i)  the
preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of one or more registration statements on the appropriate form in
relation to the Capital Securities, including any amendments thereto; 


         (ii)  the
determination of the states in which to take appropriate action to qualify or register for sale all or part of the Capital Securities and the determination of any
and all such acts, other than actions which must be taken by or on behalf of the Trust, and the advice to the Trustees of actions they must take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any
such states; 


        (iii)  if
the Depositor elects, the preparation for filing by the Trust and execution on behalf of the Trust of any application to the New York Stock Exchange or any other
national stock exchange or The NASDAQ National Market or any other automated quotation system for listing upon notice of issuance of any Capital Securities and filing with such exchange or
self-regulatory organization such notifications and documents as may be necessary from time to time to maintain such listing; 



        (iv)  the
negotiation of the terms of, and the execution and delivery of, the Underwriting Agreement providing for the sale of the Capital Securities; and 


         (v)  the
taking of any other actions necessary or desirable to carry out any of the foregoing activities. 




        (d)   Notwithstanding
anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so
that the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or fail to be classified as a grantor trust for United States federal income tax purposes
and so that the Debentures will be treated as indebtedness of the Depositor for United States federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and any Administrative Trustee determines in its
discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests of the Holders of the Capital Securities. 




        Section 2.8    Assets of Trust.    


        The
assets of the Trust shall consist solely of the Trust Property. 


        Section 2.9    Title to Trust Property.    


        Legal
title to all Trust Property shall be vested at all times in the Property Trustee (in its capacity as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Trust Agreement. 


 ARTICLE III  


 PAYMENT ACCOUNT  


        Section 3.1    Payment Account.    



        (a)   On
or prior to the Closing Date, the Property Trustee shall establish the Payment Account. The Property Trustee and any agent of the Property Trustee shall have
exclusive control 



11







 

and
sole right of withdrawal with respect to the Payment Account for the purpose of making deposits in and withdrawals from the Payment Account in accordance with this Trust Agreement. All monies and
other property deposited or held from time to time in the Payment Account shall be held by the Property Trustee in the Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of payments provided for herein. 



        (b)   The
Property Trustee shall deposit in the Payment Account, promptly upon receipt, all payments of principal of or interest or premium on, and any other payments or
proceeds with respect to, the Debentures. Amounts held in the Payment Account shall not be invested by the Property Trustee. 



 ARTICLE IV  


 DISTRIBUTIONS; REDEMPTION  


        Section 4.1    Distributions.    



        (a)   The
Trust Securities represent undivided beneficial ownership interests in the Trust Property, and Distributions (including of Additional Amounts) will be made on the
Trust Securities at the rate and on the dates that payments of interest (including of Additional Interest) are made on the Debentures. Accordingly: 



          (i)  Distributions
on the Trust Securities shall be cumulative, and will accumulate whether or not there are funds of the Trust available for the payment of Distributions.
Distributions shall accrue from August [    •    ], 2008, and, except in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Debentures pursuant to the Indenture, shall be payable quarterly in arrears on
February [    •    ], May [    •    ],
August [    •    ] and November [    •    ] of each year, beginning
November [    •    ], 2008 (each such date, a "Distribution Date"). In the event that any Distribution Date would otherwise fall on a day
that is not a Business Day, the Distribution will be postponed to the next day that is a Business Day and no interest will accrue as a result of that postponement. 



         (ii)  Assuming
payments of interest on the Debentures are made when due (and before giving effect to Additional Amounts, if applicable), Distributions on the Trust Securities
shall be payable at the rate per annum provided for in the Debentures. The amount of Distributions payable for any period shall include the Additional Amounts, if any. 


        (iii)  Distributions
on the Trust Securities shall be made by the Property Trustee from the Payment Account and shall be payable on each Distribution Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for the payment of such Distributions. 




        (b)   Distributions
on the Trust Securities with respect to a Distribution Date shall be payable to the Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be one Business Day prior to such Distribution Date; provided,  however, that in the event that the
Capital Securities do not remain in book-entry-only form, the relevant record date shall be
the first day of the month in which the relevant Distribution Date occurs without giving effect to the third sentence of Section 4.1(a)(i) (whether or not such record date is a Business Day). 



        Section 4.2    Redemption.    


        (a)   On
each Debenture Repayment Date and the Debenture Maturity Date, the Trust will be required to redeem a Like Amount of Trust Securities at the Redemption Price. 


12







 

        (b)   Notice
of redemption shall be given by the Property Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date (or in the case of a Debenture Repayment Date, not less than 10 nor more than 15 Business Days prior to the Redemption Date) to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices of redemption shall state: 



          (i)  the
Redemption Date; 


         (ii)  the
Redemption Price; 


        (iii)  the
CUSIP number; 


        (iv)  if
less than all the Outstanding Trust Securities are to be redeemed, the identification and the total Liquidation Amount of the particular Trust Securities to be
redeemed; 


         (v)  that
on the Redemption Date the Redemption Price will become due and payable upon each such Trust Security to be redeemed and that Distributions thereon will cease to
accrue on and after said date; and 


        (vi)  if
the Capital Securities are no longer in book-entry-only form, the place and address where the Holders shall surrender their Capital
Securities Certificates. 




        (c)   The
Trust Securities redeemed on each Redemption Date shall be redeemed at the Redemption Price with the proceeds from the contemporaneous redemption of the Debentures
or payment on a Debenture Repayment Date or the Debenture Maturity Date. Redemptions of the Trust Securities shall be made and the Redemption Price shall be payable on each Redemption Date only to the
extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Redemption Price. 



        (d)   If
the Property Trustee gives a notice of redemption in respect of any Capital Securities, then, by 10:00 A.M., New York City time, on the Redemption Date,
subject to Section 4.2(c), the Property Trustee will, so long as the Capital Securities are in book-entry-only form, irrevocably deposit with the Clearing Agency for the
Capital Securities funds sufficient to pay the applicable Redemption Price and will give such Clearing Agency irrevocable instructions and authority to pay the Redemption Price to the Holders thereof.
If the Capital Securities are no longer in book-entry-only form, the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders thereof upon surrender of their
Capital Securities Certificates. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any Trust Securities called for redemption shall be payable to the Holders
of such Trust Securities as they appear on the Securities Register for the Trust Securities on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date of such deposit, all rights of Securityholders holding Trust Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price and any Distribution payable on or prior to the Redemption Date, but without interest thereon, and such Trust Securities will cease to be Outstanding.
In the event that any date on which any Redemption Price is payable is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made on such date. In the event that payment of the Redemption Price in respect of any Trust Securities called for redemption
is improperly withheld or refused and not paid either by the Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust Securities will continue to accrue, at the then applicable
rate, from the Redemption Date originally established by the Trust for such Trust Securities to the date such Redemption Price is actually paid, in 


13







 



which
case the actual payment date will be the date fixed for redemption for purposes of calculating the Redemption Price. 


        (e)   Payment
of the Redemption Price on the Trust Securities shall be made to the recordholders thereof as they appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be one Business Day prior to the relevant Redemption Date; provided,  however, that in the event that the Capital
Securities do not remain in book-entry-only form, the relevant record date shall be
the date 15 days prior to the relevant Redemption Date. 


        (f)    Subject
to Section 4.3(a), if less than all the Outstanding Trust Securities are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated on a pro rata basis (based on Liquidation Amounts) among the Common Securities and the Capital
Securities. The particular Capital Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding Capital Securities
not previously called for redemption, by such method (including, without limitation, by lot) as the Property Trustee shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $25 or an integral multiple of $25 in excess thereof) of the Liquidation Amount of Capital Securities of a denomination larger than $25. The Property Trustee shall
promptly notify the Security Registrar in writing of the Capital Securities selected for redemption and, in the case of any Capital Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Capital Securities shall relate, in the case of
any Capital Securities redeemed or to be redeemed only in part, to the portion of the Liquidation Amount of Capital Securities that has been or is to be redeemed. 



        Section 4.3    Subordination of Common Securities.    


        (a)   Payment
of Distributions (including Additional Amounts, if applicable) on, and the Redemption Price of, the Trust Securities, as applicable, shall be made, subject to
Section 4.2(f), pro rata among the Common Securities and the Capital Securities based on the Liquidation Amount of the Trust Securities;  provided,
however, that if on any Distribution Date or Redemption Date any Event of Default resulting
from a Debenture Event of Default shall have occurred and be continuing, no payment of any Distribution (including Additional Amounts, if applicable) on, or Redemption Price of, any Common Security,
and no other payment on account of the redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Capital Securities for all Distribution periods terminating on or prior thereto, or in the case of payment of the Redemption Price the
full amount of such Redemption Price on all Outstanding Capital Securities then called for redemption, shall have been made or provided for, and all funds immediately available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions (including Additional Amounts, if applicable) on, or the Redemption Price of, Capital Securities then due and payable. 


        (b)   In
the case of the occurrence of any Event of Default resulting from any Debenture Event of Default, the Holder of Common Securities will be deemed to have waived any
right to act with respect to any such Event of Default under this Trust Agreement until the effect of all such Events of Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until any such Event of Default under this Trust Agreement with respect to the Capital Securities has been so cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Capital Securities and not the Holder of the Common Securities, and only the Holders of the Capital Securities will have the right to direct the Property
Trustee to act on their behalf. 


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        Section 4.4    Payment Procedures.    



        Payments
of Distributions (including Additional Amounts, if applicable) in respect of the Capital Securities shall be made by check mailed to the address of the Person entitled thereto
as such address shall appear on the Securities Register or, if the Capital Securities are held by a Clearing Agency, such Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency on the applicable Distribution Dates. Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed in writing between the Property Trustee and the Common Securityholder. 


        Section 4.5    Tax Returns and Reports.    



        The
Administrative Trustees shall prepare (or cause to be prepared), at the Depositor's expense, and file all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In this regard, the Administrative Trustees shall (a) prepare and file (or cause to be prepared and filed) the appropriate Internal
Revenue Service Form required to be filed in respect of the Trust in each taxable year of the Trust and (b) prepare and furnish (or cause to be prepared and furnished) to each Securityholder
the appropriate Internal Revenue Service form and the information required to be provided on such form. The Administrative Trustees shall provide the Depositor and the Property Trustee with a copy of
all such returns and reports promptly after such filing or furnishing. The Property Trustee shall comply with United States federal withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to Securityholders under the Trust Securities. 


        Section 4.6    Payment of Expenses of the Trust.    


        Pursuant
to Section 10.6 of the Indenture, the Depositor, as borrower, has agreed to pay to the Trust, and reimburse the Trust for, the full amount of any costs, expenses or
liabilities of the Trust (other than obligations of the Trust to pay the Holders of any Capital Securities or other similar interests in the Trust the amounts due such Holders pursuant to the terms of
the Capital Securities or such other similar interests, as the case may be), including, without limitation, any taxes, duties or other governmental charges of whatever nature (other than withholding
taxes) imposed on the Trust by the United States or any other taxing authority. Such payment obligation includes any such costs, expenses or liabilities of the Trust that are required by applicable
law to be satisfied in connection with a termination of the Trust. 


        Section 4.7    Payments under Indenture or Pursuant to Direct Actions.    


        Any
amount payable hereunder to any Holder of Capital Securities shall be reduced by the amount of any corresponding payment such Holder (or an Owner with respect to the Holder's Capital
Securities) has directly received pursuant to Section 5.08 of the Indenture or Section 5.14 of this Trust Agreement. 


15








 








































 
 

  ARTICLE V
  
    TRUST SECURITIES CERTIFICATES    
    


        Section 5.1    Initial Ownership.    



        Upon
the creation of the Trust and the contribution by the Depositor pursuant to Section 2.3 and until the issuance of the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Depositor shall be the sole beneficial owner of the Trust. 


        Section 5.2    The Trust Securities Certificates.    


        The
Capital Securities Certificates shall be issued in minimum denominations of $25 Liquidation Amount and integral multiples of $25 in excess thereof, and the Common Securities
Certificates shall be issued in denominations of $25 Liquidation Amount and integral multiples thereof. The Trust Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee and, if executed on behalf of the Trust by facsimile, countersigned by a transfer agent or its agent. The Capital Securities Certificates
shall be authenticated by the Property Trustee by manual or facsimile signature of an authorized signatory thereof and, if executed by such authorized signatory of the Property Trustee by facsimile,
countersigned by a transfer agent or its agent. Trust Securities Certificates bearing the manual signatures of individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust or, if executed on
behalf of the Trust by facsimile, countersigned by a transfer agent or its agent, shall be validly issued and entitled to the benefits of this Trust Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the delivery of such Trust Securities Certificates or did not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a Securityholder, and shall be entitled to the rights and subject to the obligations of a Securityholder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11 and 5.13. 



        Section 5.3    Execution and Delivery of Trust Securities Certificates.    


        On
the Closing Date, the Administrative Trustees shall cause Trust Securities Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be executed
on behalf of the Trust and delivered to or upon the written order of the Depositor, signed by its chairman of the board, its president, any executive vice president, any managing director or any vice
president, treasurer or assistant treasurer or controller without further corporate action by the Depositor, in authorized denominations. 



        Section 5.4    Registration of Transfer and Exchange of Capital Securities Certificate.    


        The
Depositor shall keep or cause to be kept, at the office or agency maintained pursuant to Section 5.8, a register or registers for the purpose of registering Trust Securities
Certificates and transfers and exchanges of Capital Securities Certificates (the "Securities Register") in which the transfer agent and registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall provide for the registration of Capital Securities Certificates and Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration of transfers and exchanges of Capital Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar. 


        Upon
surrender for registration of transfer of any Capital Securities Certificate at the office or agency maintained pursuant to Section 5.8, the Administrative Trustees or any
one of them shall execute on behalf of the Trust (and if executed on behalf of the Trust by a facsimile signature, such certificate shall be countersigned by a transfer agent or its agent) and
deliver, in the name of the designated transferee or transferees, one or more new Capital Securities Certificates in authorized 


16







 



denominations
of a like aggregate Liquidation Amount dated the date of execution by such Administrative Trustee or Trustees. The Securities Registrar shall not be required to register the transfer of
any Capital Securities that have been called for redemption during a period beginning at the opening of business 15 days before the day of selection for such redemption. 


        At
the option of a Holder, Capital Securities Certificates may be exchanged for other Capital Securities Certificates in authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Capital Securities Certificates to be exchanged at the office or agency maintained pursuant to Section 5.8. 


        Every
Capital Securities Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to an
Administrative Trustee and the Securities Registrar duly executed by the Holder or his attorney duly authorized in writing. Each Capital Securities Certificate surrendered for registration of transfer
or exchange shall be cancelled and subsequently disposed of by an Administrative Trustee or the Securities Registrar in accordance with such Person's customary practice. 



        No
service charge shall be made for any registration of transfer or exchange of Capital Securities Certificates, but the Securities Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Capital Securities Certificates. 


        Section 5.5    Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.    


        If
(a) any mutilated Trust Securities Certificate shall be surrendered to the Securities Registrar, or if the Securities Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Trust Securities Certificate and (b) there shall be delivered to the Securities Registrar and the Administrative Trustees such security or indemnity as may
be required by them to save each of them harmless, then in the absence of notice that such Trust Securities Certificate shall have been acquired by a bona fide or protected purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall execute by manual or facsimile signature and, if executed on behalf of the Trust by facsimile signature, such certificate
shall be countersigned by a transfer agent, and make available for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with the issuance of any new Trust Securities Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided beneficial interest in the Trust Property, as if originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time. 


        Section 5.6    Persons Deemed Securityholders.    


        The
Trustees or the Securities Registrar shall treat the Person in whose name any Trust Securities Certificate shall be registered in the Securities Register as the owner of such Trust
Securities Certificate
for the purpose of receiving Distributions and for all other purposes whatsoever, and neither the Trustees nor the Securities Registrar shall be bound by any notice to the contrary. 


        Section 5.7    Access to List of Securityholders' Names and Addresses.    


        Each
Holder and each Owner shall be deemed to have agreed not to hold the Depositor, the Property Trustee or the Administrative Trustees accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was derived. 


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        Section 5.8    Maintenance of Office or Agency.    


        The
Administrative Trustees shall maintain an office or offices or agency or agencies where Capital Securities Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Trustees in respect of the Trust Securities Certificates may be served. The Administrative Trustees initially designate Wilmington Trust Company, Attn:
Corporate Trust Administration, at its Corporate Trust Office for such purposes. The Administrative Trustees shall give prompt written notice to the Depositor, the Property Trustee and to the
Securityholders of any change in the location of the Securities Register or any such office or agency. 


        Section 5.9    Appointment of Paying Agent.    


        The
Paying Agent shall make Distributions to Securityholders from the Payment Account and shall report the amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account for the purpose of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in their sole discretion that the Paying Agent shall have failed to perform its obligations under this Trust Agreement in any
material respect. The Paying Agent shall initially be the Bank, and any co-paying agent chosen by the Bank, and acceptable to the Administrative Trustees and the Depositor. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written notice to the Administrative Trustees, the Property Trustee and the Depositor. In the event that the
Bank shall no longer be the Paying Agent or a successor Paying Agent shall resign or its authority to act be revoked, the Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank or trust company). The Administrative Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the
Administrative Trustees to execute and deliver to the Trustees an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Securityholders in trust for the benefit of the Securityholders entitled thereto until such
sums shall be paid to such Securityholders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon resignation or removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying agent appointed hereunder, and any Paying Agent shall be bound by the requirements with respect to paying agents of
securities issued pursuant to the Trust Indenture Act. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise. 


        Section 5.10    Ownership of Common Securities by Depositor.    


        On
the Closing Date, the Depositor shall acquire and retain beneficial and record ownership of the Common Securities. To the fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger of the Depositor into another Person, or any conveyance, transfer or lease by the Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, any attempted transfer of the Common Securities shall be void. The Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE TO ANY PERSON OTHER THAN AS SET FORTH IN THE TRUST AGREEMENT (AS DEFINED BELOW)". 


        Section 5.11    Book-Entry Capital Securities Certificates; Common Securities Certificate.    



        (a)   The
Capital Securities Certificates, upon original issuance, will be issued in the form of a typewritten Capital Securities Certificate or Certificates representing
Book-Entry Capital Securities Certificates, to be delivered to The Depository Trust Company, the initial Clearing Agency, by, or on 


18







 



behalf
of, the Trust. Such Capital Securities Certificate or Certificates shall initially be registered on the Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive Capital Securities Certificate representing such Owner's interest in such Capital Securities, except as provided in Section 5.13. Unless
and until Definitive Capital Securities Certificates have been issued to Owners pursuant to Section 5.13: 



          (i)  the
provisions of this Section 5.11(a) shall be in full force and effect; 


         (ii)  the
Securities Registrar and the Trustees shall be entitled to deal with the Clearing Agency for all purposes of this Trust Agreement relating to the
Book-Entry Capital Securities Certificates (including the payment of the Liquidation Amount of and Distributions on the Capital Securities evidenced by Book-Entry Capital
Securities Certificates and the giving of instructions or directions to Owners of Capital Securities evidenced by Book-Entry Capital Securities Certificates) as the sole Holder of Capital
Securities evidenced by Book-Entry Capital Securities Certificates and shall have no obligations to the Owners thereof; 


        (iii)  to
the extent that the provisions of this Section 5.11 conflict with any other provisions of this Trust Agreement, the provisions of this Section 5.11
shall control; and 


        (iv)  the
rights of the Owners of the Book-Entry Capital Securities Certificates shall be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the Certificate Depository Agreement, unless and until Definitive
Capital Securities Certificates are issued pursuant to Section 5.13, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Capital Securities to such Clearing Agency Participants. 




        (b)   A
single Common Securities Certificate representing the Common Securities shall be issued to the Depositor in the form of a definitive Common Securities Certificate. 



        Section 5.12    Notices to Clearing Agency.    


        To
the extent that a notice or other communication to the Owners is required under this Trust Agreement, unless and until Definitive Capital Securities Certificates shall have been
issued to Owners pursuant to Section 5.13, the Trustees shall give all such notices and communications specified herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners. 


        Section 5.13    Definitive Capital Securities Certificates.    



        If
(a) the Depositor advises the Trustees in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Capital
Securities Certificates, and the Depositor is unable to locate a qualified successor, (b) the Depositor at its sole discretion on behalf of the Trust advises the Trustees in writing that it
elects to terminate the book-entry system through the Clearing Agency or (c) after the occurrence of a Debenture Event of Default, Owners of Capital Securities Certificates
representing beneficial interests aggregating at least a majority of the Liquidation Amount advise the Administrative Trustees in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Owners of Capital Securities Certificates, then the Administrative Trustees shall notify other Trustees and the Clearing Agency,
and the Clearing Agency, in accordance with its customary rules and procedures, shall notify all Clearing Agency Participants for whom it holds Capital Securities of the occurrence of any such event
and of the availability of the Definitive Capital Securities Certificates to Owners of such class or classes, as applicable, requesting the same. Upon surrender to the Administrative Trustees of the
typewritten Capital Securities Certificate or Certificates representing the Book-Entry Capital Securities Certificates by the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive Capital Securities Certificates in accordance with the 


19







 



instructions
of the Clearing Agency or, if executed on behalf of the Trust by facsimile, countersigned by a transfer agent or its agent. Neither the Securities Registrar nor the Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Capital Securities
Certificates, the Trustees shall recognize the Holders of the Definitive Capital Securities Certificates as Securityholders to the extent the same is registered in the Securities Register as an owner.
The Definitive Capital Securities Certificates shall be typewritten, printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative Trustees
that meets the requirements of any stock exchange or automated quotation system on which the Capital Securities are then listed or approved for trading, as evidenced by the execution thereof by the
Administrative Trustees or any one of them. 


        Section 5.14    Rights of Securityholders.    


        (a)   The
legal title to the Trust Property is vested exclusively in the Property Trustee (in its capacity as such) in accordance with Section 2.9, and the
Securityholders shall not have any right or title therein other than the undivided beneficial ownership interest in the assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of the Trust except as described below. The Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust Securities shall have no preemptive or similar rights and when issued and delivered to Securityholders against payment of the purchase price
therefor will be fully paid and nonassessable by the Trust. The Holders of the Capital Securities, in their capacities as such, shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. 


        (b)   For
so long as any Capital Securities remain Outstanding, if, upon a Debenture Event of Default described in Section 2.1(j)(1) of the Supplemental Indenture, the
Debenture Trustee fails or the holders of not less than 25% in principal amount of the outstanding Debentures fail to declare the principal of all of the Debentures to be immediately due and payable,
the Holders of at least 25% in Liquidation Amount of the Capital Securities then Outstanding shall have such right by a notice in writing to the Depositor and the Debenture Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the Debentures shall become immediately due and payable as set forth in the Indenture,  provided that the payment of principal and
interest on such Debentures shall remain subordinated to the extent provided in the Indenture. 


        At
any time after such a declaration of acceleration with respect to the Debentures has been made and before a judgment or decree for payment of the money due has been obtained by the
Debenture Trustee as described in the Indenture, the Holders of a majority in Liquidation Amount of the Capital Securities, by written notice to the Property Trustee, the Depositor and the Debenture
Trustee, may rescind and annul such declaration and its consequences if: 



          (i)  the
Depositor has paid or deposited with the Debenture Trustee a sum sufficient to pay: 



        (A)  all
overdue installments of interest (including any Additional Interest) on all of the Debentures, 



        (B)  the
principal of any Debentures which have become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Debentures, and 


        (C)  all
sums paid or advanced by the Debenture Trustee under the Indenture and the reasonable compensation, expenses, disbursements and advances of the Debenture Trustee and
the Property Trustee, their agents and counsel; and 




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         (ii)  all
Events of Default with respect to the Debentures, other than the non-payment of the principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13 of the Indenture. 




        The
Holders of a majority in aggregate Liquidation Amount of the Capital Securities may, on behalf of the Holders of all the Capital Securities, waive any past default under the
Indenture, except a default
in the payment of principal or interest (unless all Events of Default with respect to the Debentures, other than the non-payment of the principal of the Debentures which has become due
solely by such acceleration, have been cured or annulled as provided in Section 5.3 of the Indenture and the Depositor has paid or deposited with the Debenture Trustee a sum sufficient to pay
all overdue installments of interest (including any Additional Interest) on the Debentures, the principal of any Debentures which have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Debentures, and all sums paid or advanced by the Debenture Trustee under the Indenture and the reasonable compensation, expenses, disbursements and advances
of the Debenture Trustee and the Property Trustee, their agents and counsel) or a default in respect of a covenant or provision which under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Debenture. No such rescission shall affect any subsequent default or impair any right consequent thereon. 



        Upon
receipt by the Property Trustee of written notice declaring such an acceleration, or rescission and annulment thereof, by Holders of the Capital Securities all or part of which are
represented by Book-Entry Capital Securities Certificates, a record date shall be established for determining Holders of Outstanding Capital Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property Trustee receives such notice. The Holders of Outstanding Capital Securities on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided
that, unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to
the day which is 90 days after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is identical to a written notice which has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 5.14(b). 



        (c)   For
so long as any Capital Securities remain Outstanding, to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the Indenture,
(i) upon a breach by the Depositor of its obligations under Section 2.1(i) of the Supplemental Indenture to issue Qualifying APM Securities (as defined therein), any Holder of Capital
Securities shall have the right to institute a suit directly against the Depositor to enforce such obligations or for such other remedies as may be available, and (ii) upon a Debenture Event of
Default specified in Sections 2.1(j)(1) or 2.1(j)(2) of the Supplemental Indenture, any Holder of Capital Securities shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 7.08 of the Indenture and 2.1(p) of the Supplemental Indenture, for enforcement of payment to such Holder of the principal amount of or interest on Debentures
having a principal amount equal to the Liquidation Amount of the Capital Securities of such Holder (a "Direct Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c),
the Holders of Capital Securities shall have no right to exercise directly any right or remedy available to the holders of, or in respect of, the Debentures. 


21







 

        Section 5.15    CUSIP Numbers.    


        The
Administrative Trustees in issuing the Capital Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Property Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Capital Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Capital Securities,
and any such redemption shall not be affected by any defect in or omission of such numbers. The Administrative Trustees will promptly notify the Property Trustee of any change in the CUSIP numbers. 


 
 

  ARTICLE VI
  
    ACTS OF SECURITYHOLDERS; MEETINGS; VOTING    
    


        Section 6.1    Limitations on Voting Rights.    



        (a)   Except
as provided in this Section, in Sections 5.14, 8.10 and 10.3 and in the Indenture and as otherwise required by law, no Holder of Capital Securities shall
have any right to vote or in any manner otherwise control the administration, operation and management of the Trust or the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as to constitute the Securityholders from time to time as partners or members of an association. 


        (b)   So
long as any Debentures are held by the Property Trustee, the Trustees shall not (i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust or power conferred on the Debenture Trustee with respect to such Debentures, (ii) waive any past default which is waivable
under Section 7.13 of the Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable or (iv) consent
to any amendment, modification or termination of the Indenture or the Debentures, where such consent shall be required, without, in each case, obtaining the prior approval of the Holders of at least a
majority in Liquidation Amount of all Outstanding Capital Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of Debentures affected thereby, no such consent shall be given by the Property Trustee without the prior written consent of each
Holder of Capital Securities. The Trustees shall not revoke any action previously authorized or approved by a vote of the Holders of Capital Securities, except by a subsequent vote of the Holders of
Capital Securities. The Property Trustee shall notify all Holders of the Capital Securities of any notice of default received from the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Capital Securities, prior to taking any of the foregoing actions, the Administrative Trustees shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that such action shall not cause the Trust to fail to be classified as a grantor trust for United States federal income tax purposes. 


22









 



































  
        (c)   If any proposed amendment to the Trust Agreement provides for, or the Trustees otherwise propose to effect, (i) any action that would adversely affect in any
material respect the powers, preferences or special rights of the Capital Securities, whether by way of amendment to the Trust Agreement or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of this Trust Agreement, then the Holders of Outstanding Capital Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of at least a majority in Liquidation Amount of the Outstanding Capital
Securities. Notwithstanding any other provision of this Trust Agreement, no amendment to this Trust Agreement may be made if, as a result of such amendment, it would cause the Trust to fail to be
classified as a grantor trust for United States federal income tax purposes. 


        Section 6.2    Notice of Meetings.    


        Notice
of all meetings of the Capital Securityholders, stating the time, place and purpose of the meeting, shall be given by the Property Trustee pursuant to Section 10.9 to each
Capital Securityholder of record, at his registered address, at least 15 days and not more than 90 days before the meeting. At any such meeting, any business properly before the meeting
may be so considered whether or not stated in the notice of the meeting. Any adjourned meeting may be held as adjourned without further notice. 


        Section 6.3    Meetings of Capital Securityholders.    


        No
annual meeting of Securityholders is required to be held. The Administrative Trustees, however, shall call a meeting of Capital Securityholders to vote on any matter upon the written
request of the Capital Securityholders of record of 25% of the Outstanding Capital Securities (based upon their Liquidation Amount) and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of Capital Securityholders to vote on any matters as to which Capital Securityholders are entitled to vote pursuant to this Trust Agreement or the Indenture. 


        Capital
Securityholders of record of 50% of the Outstanding Capital Securities (based upon their Liquidation Amount), present in person or by proxy, shall constitute a quorum at any
meeting of Capital Securityholders. 


        If
a quorum is present at a meeting, an affirmative vote by the Capital Securityholders of record present, in person or by proxy, holding a majority of the Outstanding Capital Securities
(based upon their Liquidation Amount) held by holders of record of Outstanding Capital Securities present, either in person or by proxy, at such meeting shall constitute the action of the Capital
Securityholders, unless this Trust Agreement requires a greater number of affirmative votes. 


        Section 6.4    Voting Rights.    


        Securityholders
shall be entitled to one vote for each $25 of Liquidation Amount represented by their Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote. 


        Section 6.5    Proxies, etc.    


        At
any meeting of Securityholders, any Securityholder entitled to vote thereat may vote by proxy, provided that no proxy shall be voted at
any meeting unless it shall have been placed on file with the Administrative Trustees, or with such other officer or agent of the Trust as the Administrative Trustees may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies may be solicited in the name of the Property Trustee or one or more officers of the
Property Trustee. Only Securityholders of record shall be entitled to vote. When Trust Securities are held jointly by several Persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be present at such meeting in person or by proxy, and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A proxy purporting to be 


23







 



executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger. No proxy shall be
valid more than three years after its date of execution. 


        Section 6.6    Securityholder Action by Written Consent.    


        Any
action which may be taken by Securityholders at a meeting may be taken without a meeting and without prior notice if Securityholders holding a majority of all Outstanding Trust
Securities (based upon their Liquidation Amount) entitled to vote in respect of such action (or such larger proportion thereof as shall be required by any express provision of this Trust Agreement)
shall consent to the action in writing. 


        Section 6.7    Record Date for Voting and Other Purposes.    


        For
the purposes of determining the Securityholders who are entitled to notice of and to vote at any meeting or by written consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise provided for in this Trust Agreement, or for the purpose of any other action, the Administrative Trustees may from time to time fix a
date, not more than 90 days prior to the date of any meeting of Securityholders or the payment of a Distribution or other action, as the case may be, as a record date for the determination of
the identity of the Securityholders of record for such purposes. 


        Section 6.8    Acts of Securityholders.    


        Any
request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Trust Agreement to be given, made or taken by Securityholders or
Owners may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Securityholders or Owners in person or by an agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become effective when such instrument or instruments are delivered to an Administrative Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Securityholders or Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor of the Trustees, if made in the
manner provided in this Section. 


        The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which any Trustee receiving the same deems sufficient. 


        The
ownership of Capital Securities shall be proved by the Securities Register. 


        Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Securityholder of any Trust Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued upon the registration of transfer thereof or in exchange therefore or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not notation of such action is made upon such Trust Security. 


        Without
limiting the foregoing, a Securityholder entitled hereunder to take any action hereunder with regard to any particular Trust Security may do so with regard to all or any part of
the Liquidation 


24







 



Amount
of such Trust Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such Liquidation Amount. 


        If
any dispute shall arise between the Securityholders and the Administrative Trustees or among such Securityholders or Trustees with respect to the authenticity, validity or binding
nature of any request, demand, authorization, direction, consent, waiver or other Act of such Securityholder or Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter. 


        Section 6.9    Inspection of Records    


        Upon
reasonable notice to the Administrative Trustees and the Property Trustee, the records of the Trust shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a Securityholder. 


 ARTICLE VII  


 REPRESENTATIONS AND WARRANTIES  



        Section 7.1    Representations and Warranties of the Property Trustee and the Delaware Trustee.    


        The
Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Securityholders that: 



        (a)   the
Property Trustee is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; 



        (b)   the
Property Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; 


        (c)   the
Delaware Trustee is a Delaware banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; 


        (d)   the
Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; 


        (e)   this
Trust Agreement has been duly authorized, executed and delivered by the Property Trustee and the Delaware Trustee and constitutes the valid and legally binding
agreement of each of the Property Trustee and the Delaware Trustee enforceable against each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; 



        (f)    the
execution, delivery and performance of this Trust Agreement has been duly authorized by all necessary corporate or other action on the part of the Property Trustee
and the Delaware Trustee and does not require any approval of stockholders of the Property Trustee and the Delaware Trustee and such execution, delivery and performance will not (i) violate the
charter or by-laws of the Property Trustee or the Delaware Trustee, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the State of Delaware governing
the banking, trust or general powers of the Property Trustee or the Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee; 



25







 

        (g)   neither
the authorization, execution or delivery by the Property Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee or the Delaware Trustee (as appropriate in context) contemplated herein or therein requires the consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency under any existing Delaware law governing the banking, trust or general powers of the Property Trustee or the Delaware
Trustee, as the case may be; and 


        (h)   there
are no proceedings pending or, to the best of each of the Property Trustee's and the Delaware Trustee's knowledge, threatened against or affecting the Property
Trustee or the Delaware Trustee in any court or before any governmental authority, agency or arbitration board or tribunal which, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the Property Trustee or the Delaware Trustee, as the case may be, to enter into or perform its obligations as one of the Trustees
under this Trust Agreement. 




        Section 7.2    Representations and Warranties of Depositor.    


        The
Depositor hereby represents and warrants for the benefit of the Securityholders that: 



        (a)   the
Trust Securities Certificates issued at the Closing Date on behalf of the Trust have been duly authorized and will have been, duly and validly executed, issued and
delivered by the Trustees pursuant to the terms and provisions of, and in accordance with the requirements of, this Trust Agreement and the Securityholders will be, as of such date, entitled to the
benefits of this Trust Agreement; and 


        (b)   there
are no taxes, fees or other governmental charges payable by the Trust (or the Trustees on behalf of the Trust) under the laws of the State of Delaware or any
political subdivision thereof in connection with the execution, delivery and performance by the Property Trustee or the Delaware Trustee, as the case may be, of this Trust Agreement. 



 ARTICLE VIII  


 THE TRUSTEES  


        Section 8.1    Certain Duties and Responsibilities.    


        (a)   The
duties and responsibilities of the Trustees shall be as provided by this Trust Agreement and, in the case of the Property Trustee, by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Trust Agreement shall require the Trustees to expend or risk their own funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers, if they shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to them. Whether or not therein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section. Nothing in this Trust Agreement shall be construed to release an Administrative Trustee from liability for its own gross
negligent action, its own gross negligent failure to act, or its own willful misconduct. To the extent that, at law or in equity, an Administrative Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, such Administrative Trustee shall not be liable to the Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such other duties and liabilities of the Administrative Trustees. 


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        (b)   All
payments made by the Property Trustee or a Paying Agent in respect of the Trust Securities shall be made only from the revenue and proceeds from the Trust Property
and only to the extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the Property Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and proceeds from the Trust Property to the extent legally available for distribution to it
as herein provided and that the Trustees are not personally liable to it for any amount distributable in respect of any Trust Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the case of the Property Trustee, in the Trust Indenture Act. 



        (c)   No
provision of this Trust Agreement shall be construed to relieve the Property Trustee from liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that: 



          (i)  the
Property Trustee shall not be liable for any error of judgment made in good faith by an authorized officer of the Property Trustee, unless it shall be proved that
the Property Trustee was negligent in ascertaining the pertinent facts; 


         (ii)  the
Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of
not less than a majority in Liquidation Amount of the Trust Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee under this Trust Agreement; 


        (iii)  the
Property Trustee's sole duty with respect to the custody, safekeeping and physical preservation of the Debentures and the Payment Account shall be to deal with
such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee
under this Trust Agreement and the Trust Indenture Act; 


        (iv)  the
Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree in writing with the Depositor; and money held by
the Property Trustee need not be segregated from other funds held by it except in relation to the Payment Account maintained by the Property Trustee pursuant to Section 3.1 and except to the
extent otherwise required by law; and 


         (v)  the
Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the default or misconduct of the Administrative Trustees or the Depositor. 




        Section 8.2    Certain Notices.    


        Within
ten Business Days after the occurrence of any Event of Default actually known to the Property Trustee, the Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.9, notice of such Event of Default to the Securityholders, the Administrative Trustees and the Depositor, unless such Event of Default shall have been cured or waived. 



        Within
five Business Days after the receipt of notice of the Depositor's exercise of its right to defer the payment of interest on the Debentures pursuant to the Indenture, the
Administrative Trustee shall transmit, in the manner and to the extent provided in Section 10.9, notice of such exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked. 


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        Section 8.3    Certain Rights of Property Trustee.    


        Subject
to the provisions of Section 8.1: 



        (a)   the
Property Trustee may rely and shall be protected in acting or refraining from acting in good faith upon any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; 


        (b)   if
(i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee finds the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee
is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Capital Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the Depositor as to the course of action to be taken and the Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor;  provided, however, that if the Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such reasonably shorter period of time set forth in such notice (which to the extent practicable shall not be less than two Business
Days), it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Trust Agreement as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability except for its own bad faith, negligence or willful misconduct; 



        (c)   any
direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers' Certificate; 


        (d)   whenever
in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or
omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; 



        (e)   the
Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording, refiling or reregistration thereof; 


        (f)    the
Property Trustee may consult with counsel of its selection (which counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent
jurisdiction; 


        (g)   the
Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction; 



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        (h)   the
Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more
Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit; 


        (i)    the
Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys;  provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect to selection of any agent or attorney
appointed by it hereunder; 


        (j)    whenever
in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive written instructions with respect to enforcing any remedy
or right or taking any other action hereunder the Property Trustee (i) may request written instructions from the Holders of the Trust Securities which written instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy,
right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are received, and (iii) shall be protected in acting in
accordance with such written instructions; and 


        (k)   except
as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the
provisions of this Trust Agreement. 




        No
provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to
exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty. 


        Section 8.4    Not Responsible for Recitals or Issuance of Securities.    


        The
recitals contained herein and in the Trust Securities Certificates shall be taken as the statements of the Trust, and the Trustees do not assume any responsibility for their
correctness. The Trustees shall not be accountable for the use or application by the Depositor of the proceeds of the Debentures. 



        Section 8.5    May Hold Securities.    


        Any
Trustee or any other agent of any Trustee or the Trust, in its individual or any other capacity, may become the owner or pledgee of Trust Securities and, subject to
Sections 8.8 and 8.13, except as provided in the definition of the term "Outstanding" in Article I, may otherwise deal with the Trust with the same rights it would have if it were not a
Trustee or such other agent. 


        Section 8.6    Compensation; Indemnity; Fees.    


        Pursuant
to Section 8.07 of the Indenture, the Depositor, as borrower, agrees: 



        (a)   to
pay to the Trustees from time to time such compensation as shall be agreed in writing with the Depositor for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); 



        (b)   except
as otherwise expressly provided herein, to reimburse the Trustees upon request for all reasonable expenses, disbursements and advances incurred or made by the
Trustees in 



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accordance
with any provision of this Trust Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and 



        (c)   to
the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any Trustee, and (iv) any employee or agent of the Trust or its Affiliates, (referred to herein as an "Indemnified Person")
from and against any and all loss, damage, liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by such Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this Trust Agreement, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or willful misconduct with respect to such acts or omissions. When the Property Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.01(i) or Section 7.01(ii) of the Indenture, the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law. 




        The
provisions of this Section 8.6 shall survive the termination of this Trust Agreement. 


        No
Trustee may claim any lien or charge on any Trust Property as a result of any amount due pursuant to this Section 8.6. 


        The
Depositor and any Trustee (in the case of the Property Trustee, subject to Section 8.8 hereof) may engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of Trust Securities shall have no rights by virtue of this Trust Agreement
in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Depositor, nor any Trustee, shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and the Depositor or any Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may engage or be interested in any financial or other transaction with the Depositor or any Affiliate of the Depositor, or may
act as depository for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Depositor or its Affiliates. 



        Section 8.7    Corporate Property Trustee Required; Eligibility of Trustees.    


        (a)   There
shall at all times be a Property Trustee hereunder with respect to the Trust Securities. The Property Trustee shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such, has a combined capital and surplus of at least $50,000,000, and is a U.S. Person. At all times, the Property Trustee shall be (i) a bank, as defined in
Section 581 of the Code or (ii) a U.S. government-owned agency or U.S. government-sponsored enterprise. If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the Property Trustee with respect to the Trust Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. 


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        (b)   There
shall at all times be one or more Administrative Trustees hereunder with respect to the Trust Securities. Each Administrative Trustee shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind that entity, and, in either case, shall be a U.S. Person. 


        (c)   There
shall at all times be a Delaware Trustee with respect to the Trust Securities. The Delaware Trustee shall either be (i) a natural person who is at least
21 years of age and a resident of the State of Delaware or (ii) a legal entity with its principal place of business in the State of Delaware and that otherwise meets the requirements of
applicable Delaware law that shall act through one or more persons authorized to bind such entity, and, in either case, shall be a U.S. Person. 


        Section 8.8    Conflicting Interests.    


        If
the Property Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Trust Agreement. 



        Section 8.9    Co-Trustees and Separate Trustee.    


        Unless
an Event of Default shall have occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to appoint, and upon the written request of the Administrative Trustees, the Depositor shall for such purpose join with
the Administrative Trustees in the execution, delivery, and performance of all instruments and agreements necessary or proper to appoint, one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or any part of such Trust Property, or to the extent required by law to act as separate trustee of any such property, in either
case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor does not join in such appointment within 15 days after the receipt by it of a request so to do, or in case a
Debenture Event of Default has occurred and is continuing, the Property Trustee alone shall have power to make such appointment. Any co-trustee or separate trustee appointed pursuant to
this Section shall either be (i) a natural person who is at least 21 years of age and a resident of the United States or (ii) a legal entity with its principal place of business
in the United States that shall act through one or more persons authorized to bind such entity, and, in either case, shall be a U.S. Person. 


        Should
any written instrument from the Depositor be required by any co-trustee or separate trustee so appointed for more fully confirming to such co-trustee or
separate trustee such property, title, right, or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Depositor. 



        Every
co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely: 



        (a)   The
Trust Securities shall be executed and delivered and all rights, powers, duties, and obligations hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged with, the Trustees specified hereunder shall be exercised solely by such Trustees and not by such co-trustee or separate
trustee. 


        (b)   The
rights, powers, duties, and obligations hereby conferred or imposed upon the Property Trustee in respect of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed by the Property Trustee or by the Property Trustee and 



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such
co-trustee or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the Property Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate trustee. 


        (c)   The
Property Trustee at any time, by an instrument in writing executed by it, with the written concurrence of the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section, and, in case a Debenture Event of Default has occurred and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Depositor. Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section. 


        (d)   No
co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the Property Trustee or any other trustee
hereunder. 


        (e)   The
Property Trustee shall not be liable by reason of any act of a co-trustee or separate trustee. 



        (f)    Any
Act of Holders delivered to the Property Trustee shall be deemed to have been delivered to each such co-trustee and separate trustee. 




        Section 8.10    Resignation and Removal; Appointment of Successor.    


        No
resignation or removal of any Trustee (the "Relevant Trustee") and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable requirements of Section 8.11. 



        Subject
to the immediately preceding paragraph, the Relevant Trustee may resign at any time by giving written notice thereof to the Securityholders. If the instrument of acceptance by
the successor Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 30 days after the giving of such notice of resignation, the Relevant Trustee
may petition, at the expense of the Trust, any court of competent jurisdiction for the appointment of a successor Relevant Trustee. 


        Unless
a Debenture Event of Default shall have occurred and be continuing, any Trustee may be removed at any time by Act of the Common Securityholder. If a Debenture Event of Default
shall have occurred and be continuing, the Property Trustee or the Delaware Trustee, or both of them, may be removed at such time by Act of the Holders of a majority in Liquidation Amount of the
Capital Securities, delivered to the Relevant Trustee (in its individual capacity and on behalf of the Trust). An Administrative Trustee may be removed by the Common Securityholder at any time. If the
instrument of acceptance by the successor Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 30 days after such removal, the Relevant Trustee
may petition, at the expense of the Trust, any court of competent jurisdiction for the appointment of a successor Relevant Trustee. 


        If
any Trustee shall resign, be removed or become incapable of acting as Trustee, or if a vacancy shall occur in the office of any Trustee for any cause, at a time when no Debenture
Event of Default shall have occurred and be continuing, the Common Securityholder, by Act of the Common Securityholder delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Delaware Trustee, as the case may be, at a time when a Debenture Event of Default shall have occurred and be continuing, the Capital Securityholders,
by Act of the 


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Securityholders
of a majority in Liquidation Amount of the Capital Securities then Outstanding delivered to the retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and such successor Trustee shall comply with the applicable requirements of Section 8.11. If an Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default shall have occurred and be continuing, the Common Securityholder by Act of the Common Securityholder delivered to the Administrative
Trustee shall promptly appoint a successor Administrative Trustee or Administrative Trustees and such successor Administrative Trustee or Trustees shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been so appointed by the Common Securityholder or the Capital Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust Securities for at least six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee. 


        The
Property Trustee shall give notice of each resignation and each removal of the Property Trustee or the Delaware Trustee and each appointment of a successor Property Trustee or
Delaware Trustee to all Securityholders in the manner provided in Section 10.9 and shall give notice to the Depositor. Each notice shall include the name of the successor Property Trustee or
Delaware Trustee, as the case may be, and the address of its Corporate Trust Office if it is the Property Trustee. 


        Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Depositor, incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by (a) the unanimous act of the remaining Administrative
Trustees if there are at least two of them or (b) otherwise by the Depositor (with the successor in each case being a Person who satisfies the eligibility requirement for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in Section 8.7). 


        A
successor Trustee must be a U.S. Person to be appointed as such. 


        Section 8.11    Acceptance of Appointment by Successor.    


        In
case of the appointment hereunder of a successor Relevant Trustee, the retiring Relevant Trustee (if requested by the Depositor) and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an amendment hereto wherein each successor Relevant Trustee shall accept such appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers, trusts and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and (b) shall add to or change any of the provisions of this Trust Agreement as shall be necessary to provide for or facilitate the administration of the Trust by more
than one Relevant Trustee, it being understood that nothing herein or in such amendment shall constitute such Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall become effective to the extent provided therein and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Relevant Trustee; but, on written request of the Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor Relevant Trustee all Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust. 


        Upon
written request of any such successor Relevant Trustee, the Trust shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor
Relevant Trustee all such rights, powers and trusts referred to in the preceding paragraph. 


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        No
successor Relevant Trustee shall accept its appointment unless at the time of such acceptance such successor Relevant Trustee shall be qualified and eligible under this Article. 


        Section 8.12    Merger, Conversion, Consolidation or Succession to Business.    



        Any
Person into which the Property Trustee or the Delaware Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any
of the parties hereto. 


        Section 8.13    Preferential Collection of Claims Against Depositor or Trust.    



        In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to
the Trust or any other obligor upon the Trust Securities or the property of the Trust or of such other obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Property Trustee shall have made any demand on the Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise: 



        (a)   to
file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Trust Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and 


        (b)   to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Property Trustee and, in the event the Property
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee. 




        Nothing
herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement
adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding. 



        Section 8.14    Reports by Property Trustee.    


        (a)   The
Property Trustee shall transmit to Securityholders such reports concerning the Property Trustee and its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Property Trustee shall, within sixty
days after each May 15 following the date of this Trust Agreement deliver to Securityholders a brief report, dated as of such May 15, which complies with the provisions of such
Section 313(a). 


        (b)   A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Property Trustee with each national stock exchange, the Nasdaq National
Market or such other interdealer quotation system or self-regulatory organization upon which the Capital Securities are listed 


34







 



or
traded, if any, with the Commission and with the Depositor. The Depositor will promptly notify the Property Trustee of any such listing or trading. 



        Section 8.15    Reports to the Property Trustee.    


        The
Depositor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by Section 314(a) of the Trust Indenture Act in the form, in the manner and at the times required by Section 314
of the Trust Indenture Act. Delivery of such reports, information and documents to the Property Trustee is for informational purposes only and the Property Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or determinable from information contained therein, including the Trust's compliance with any of its covenants hereunder (as to
which the Property Trustee is entitled to rely exclusively on Officers' Certificates). 


        Section 8.16    Evidence of Compliance with Conditions Precedent.    


        Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers' Certificate. 


        Section 8.17    Number of Trustees.    


        (a)   The
number of Trustees shall be four, provided that the Holder of all of the Common Securities by written instrument may
increase or decrease the number of Administrative Trustees. The Property Trustee and the Delaware Trustee may be the same Person. 



        (b)   If
a Trustee ceases to hold office for any reason and the number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the number of
Trustees is increased pursuant to Section 8.17(a), a vacancy shall occur. The vacancy shall be filled with a Trustee appointed in accordance with Section 8.10. 


        (c)   The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall not operate to dissolve, terminate or annul
the Trust. Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and notwithstanding any other provision of this Trust Agreement), shall have all the powers granted to the Administrative Trustees
and shall discharge all the duties imposed upon the Administrative Trustees by this Trust Agreement. 


        Section 8.18    Delegation of Power.    


        (a)   Any
Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 (provided such person is a
U.S. Person) his or her power for the purpose of executing any documents contemplated in Section 2.7(a), including any registration statement or amendment thereto filed with the Commission, or
making any other governmental filing; and 


        (b)   The
Administrative Trustees shall have power to delegate from time to time to such of their number or to the Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited
by applicable law or contrary to the provisions of this Trust Agreement, as set forth herein. 


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 ARTICLE IX  


 TERMINATION, LIQUIDATION AND MERGER  


        Section 9.1    Termination Upon Expiration Date.    



        Unless
earlier dissolved, the Trust shall automatically dissolve at 11:59 P.M. New York City time on the Final Debenture Repayment Date (such time and date, the "Expiration
Date"). Upon such a dissolution, after satisfaction of the liabilities of the Trust, as provided by applicable law, the Trust Property shall be distributed in accordance with Section 9.4. 


        Section 9.2    Early Termination.    


        The
first to occur of any of the following events is an "Early Termination Event", the occurrence of which shall cause a dissolution of the Trust: 



        (a)   the
occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of, the Holder of the Common Securities; 


        (b)   the
written direction to the Property Trustee from the Depositor at any time to dissolve the Trust and, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, distribute Debentures to Securityholders in exchange for the Capital Securities (which direction is optional and wholly within the discretion of the Depositor); 


        (c)   the
redemption of all of the Capital Securities in connection with the redemption or repayment of all of the Debentures; and 


        (d)   the
entry of an order for dissolution of the Trust by a court of competent jurisdiction. 




        Section 9.3    Termination.    


        The
respective obligations and responsibilities of the Trustees and the Trust created and continued hereby shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all of the Trust Securities pursuant to
Section 4.2, of all amounts required to be distributed hereunder upon the final payment of the Trust Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including the performance of any tax reporting obligations with respect to the Trust or the Securityholders. 


        Section 9.4    Liquidation.    


        (a)   If
an Early Termination Event specified in clause (a), (b) or (d) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be possible by distributing, after satisfaction or the making of reasonable provisions for the payment of liabilities to
creditors of the Trust as provided by applicable law, to each Securityholder a Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid mailed not later than 30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All notices of liquidation shall: 



          (i)  state
the CUSIP Number of the Trust Securities; 


         (ii)  state
the Liquidation Date; 


        (iii)  state
that from and after the Liquidation Date, the Trust Securities will no longer be deemed to be Outstanding and any Trust Securities Certificates not surrendered
for exchange will be deemed to represent a Like Amount of Debentures; and 



36









 









































        (iv)  provide
such information with respect to the mechanics by which Holders may exchange Trust Securities Certificates for Debentures, or if Section 9.4(d) applies
receive a Liquidation Distribution, as the Administrative Trustees or the Property Trustee shall deem appropriate. 




        (b)   Except
where Section 9.2(c) or 9.4(d) applies, in order to effect the liquidation of the Trust and distribution of the Debentures to Securityholders, the Property
Trustee shall establish a record date for such distribution (which shall be not more than 45 days prior to the Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it shall deem appropriate to effect the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates. 


        (c)   Except
where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date, (i) the Trust Securities will no longer be deemed to be Outstanding,
(ii) certificates representing a Like Amount of Debentures will be issued to Holders of Trust Securities Certificates, upon surrender of such certificates to the Administrative Trustees or
their agent for exchange, (iii) if the Capital Securities are then listed or traded on the New York Stock Exchange or other exchange, interdealer quotation system or self-regulatory
organization, the Depositor shall use its best efforts to have the Debentures listed on such other exchange, interdealer quotation system or self-regulatory organization as the Capital
Securities are then listed or traded, (iv) any Trust Securities Certificates not so surrendered for exchange will be deemed to represent a Like Amount of Debentures, accruing interest at the
rate provided for in the Debentures from the last Distribution Date on which a Distribution was made on such Trust Securities Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be made to Holders of Trust Securities Certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such Securityholders to receive Debentures upon surrender of Trust Securities Certificates. 


        (d)   In
the event that, notwithstanding the other provisions of this Section 9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided herein is determined by the Property Trustee not to be practical, the Trust Property shall be liquidated, and the Trust
shall be wound-up, by the Property Trustee. In such event, Securityholders will be entitled to receive out of the assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable law, an amount equal to the Liquidation Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding sentence, the amounts payable by the Trust on the Trust Securities shall be paid on a pro
rata basis (based upon Liquidation Amounts). The Holder of the Common Securities will be entitled to receive Liquidation Distributions upon any such winding-up or
termination pro rata (determined as aforesaid) with Holders of Capital Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Capital Securities shall have a priority over the Common Securities. 



        Section 9.5    Mergers, Consolidations, Amalgamations or Replacements of the Trust.    


        The
Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation
or other Person, except pursuant to this Article IX. At the request of the Depositor, with the consent of the Administrative Trustees and without the consent of the Holders of the Capital
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate, amalgamate, or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any State; provided that (i) such successor entity either 


37







 



(a) expressly
assumes all of the obligations of the Trust with respect to the Capital Securities or (b) substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Capital Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the Depositor expressly appoints a trustee of such successor entity possessing the same powers and duties as the Property Trustee as
the holder of the Debentures, (iii) the Successor Securities are listed or traded, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange
or other organization on which the Capital Securities are then listed or traded, if any, (iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause
the Capital Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Capital Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially identical to that of the Trust, (vii) prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of Counsel to the effect that (a) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the Capital Securities (including any Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor such successor entity will be required to register as an investment company under the 1940 Act and
(viii) the Depositor owns all of the common securities of such successor entity and guarantees the obligations of such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the consent of Holders of 100% in Liquidation Amount of the Capital Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other Person or permit any other Person to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes. 


 
 

  ARTICLE X
  
    MISCELLANEOUS PROVISIONS    
    


        Section 10.1    Limitation of Rights of Securityholders.    


        The
death, incapacity, liquidation, dissolution, termination or bankruptcy of any Person having an interest, beneficial or otherwise, in Trust Securities shall not operate to terminate
this Trust Agreement, nor dissolve, terminate or annul the Trust, nor entitle the legal representatives or heirs of such Person or any Securityholder for such Person, to claim an accounting, take any
action or bring any proceeding in any court for a partition or winding up of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or
any of them. 


        Section 10.2    Liability of the Common Securityholder.    


        The
Holder of the Common Securities shall be liable for all of the debts and obligations of the Trust (other than with respect to the Trust Securities) to the extent not satisfied out of
the Trust's assets. 


        Section 10.3    Amendment.    



        (a)   This
Trust Agreement may be amended from time to time by the Property Trustee, the Administrative Trustees and the Depositor, without the consent of any Securityholders,
(i) to cure any 


38







 



ambiguity,
correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions of this Trust Agreement, (ii) to effect any amendment required in order to make this Trust Agreement consistent with
the description of the Trust Agreement contained in the Prospectus, dated [                        ]
[    •    ], 2008, as
supplemented by the Prospectus Supplement, dated [                        ]
[    •    ], 2008, relating to the Capital Securities
or (iii) to modify, eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the Trust will be classified for United States federal income
tax purposes as a grantor trust at all times that any Trust Securities are Outstanding or to ensure that the Trust will not be required to register as an investment company under the 1940 Act;  provided,
however, that in the case of clause (i), clause (ii) or clause (iii),
such action shall not adversely affect in any material respect the interests of any Securityholder, and any such amendments of this Trust Agreement shall become effective when notice thereof is given
to the Securityholders. 


        (b)   Except
as provided in Section 10.3(c) hereof, any provision of this Trust Agreement may be amended by the Trustees and the Depositor (i) with the consent
of Trust Securityholders representing not less than a majority (based upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii) upon receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted to the Trustees in accordance with such amendment will not affect the Trust's status as a grantor trust for United States
federal income tax purposes or the Trust's exemption from status of an investment company under the 1940 Act. 


        (c)   In
addition to and notwithstanding any other provision in this Trust Agreement, without the consent of each affected Securityholder, this Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a Securityholder to institute suit for the enforcement of any such payment on or after such date. Notwithstanding any other
provision herein, without the unanimous consent of the Securityholders, this paragraph (c) of this Section 10.3 may not be amended. 


        (d)   Notwithstanding
any other provisions of this Trust Agreement, no Trustee shall enter into or consent to any amendment to this Trust Agreement which would cause the Trust
to fail or cease to qualify for the exemption from status of an investment company under the 1940 Act or fail or cease to be classified as a grantor trust for United States federal income tax
purposes. 


        (e)   Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the Depositor, this Trust Agreement may not be amended in a manner which imposes
any additional obligation on the Depositor. 


        (f)    In
the event that any amendment to this Trust Agreement is made, the Administrative Trustees shall promptly provide to the Depositor a copy of such amendment. 


        (g)   Neither
the Property Trustee nor the Delaware Trustee shall be required to enter into any amendment to this Trust Agreement which affects its own rights, duties or
immunities under this Trust Agreement. The Property Trustee shall be entitled to receive an Opinion of Counsel and an Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement. 


        Section 10.4    Separability.    


        In
case any provision in this Trust Agreement or in the Trust Securities Certificates shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby. 


39







 

        Section 10.5    Governing Law.    


        THIS
TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES). 


        Section 10.6    Payments Due on Non-Business Day.    



        If
the date fixed for any payment on any Trust Security shall be a day that is not a Business Day, then such payment need not be made on such date but may be made on the next succeeding
day that is a Business Day (except as otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date. 


        Section 10.7    Successors.    


        This
Trust Agreement shall be binding upon and shall inure to the benefit of any successor to the Depositor, the Trust or the Relevant Trustee, including any successor by operation of
law. Except in connection with a consolidation, merger or sale involving the Depositor that is permitted under Article Eight of the Indenture and pursuant to which the assignee agrees in writing to
perform the Depositor's obligations hereunder, the Depositor shall not assign its obligations hereunder. 


        Section 10.8    Headings.    


        The
Article and Section headings are for convenience only and shall not affect the construction of this Trust Agreement. 


        Section 10.9    Reports, Notices and Demands.    



        Any
report, notice, demand or other communication which by any provision of this Trust Agreement is required or permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first-class postage prepaid, in the United States mail, hand delivery or facsimile transmission, in each case, addressed, (a) in
the case of a Capital Securityholder, to such Capital Securityholder as such Securityholder's name and address may appear on the Securities Register; and (b) in the case of the Common
Securityholder or the Depositor, to TCF Financial Corporation, 200 Lake Street East, Wayzata, Minnesota 55391-1693, Attention: General Counsel, facsimile no.:
(952) 475-7975. Such notice, demand or other communication to or upon a Securityholder shall be deemed to have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission. 


        Any
notice, demand or other communication which by any provision of this Trust Agreement is required or permitted to be given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in writing addressed (until another address is published by the Trust) as follows: (a) with respect to the Property Trustee to
Wilmington Trust Company, at the Corporate Trust Office, Attention: Corporate Trust Administration; (b) with respect to the Delaware Trustee, to Wilmington Trust Company, at the Corporate Trust
Office, with a copy to the Property Trustee at the address set forth in Clause (a); and (c) with respect to the Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of TCF Capital I." Such notice, demand or other communication to or upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust or the Property Trustee. 


40







 

        Section 10.10    Agreement Not to Petition.    


        Each
of the Trustees and the Depositor agree for the benefit of the Securityholders that, until at least one year and one day after the Trust has been terminated in accordance with
Article X, they shall not file, or join in the filing of, a petition against the Trust under any bankruptcy, insolvency, reorganization or other similar law (including, without limitation, the
United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of any proceeding against the Trust under any Bankruptcy Law. In the event the Depositor takes
action in violation of this Section 10.10, the Property Trustee agrees, for the benefit of Securityholders, that at the expense of the Depositor, it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition by the Depositor against the Trust or the commencement of such action and raise the defense that the Depositor has agreed in writing not
to take such action and should be stopped and precluded therefrom and such other defenses, if any, as counsel for the Property Trustee or the Trust may assert. The provisions of this
Section 10.10 shall survive the termination of this Trust Agreement. 


        Section 10.11    Trust Indenture Act; Conflict with Trust Indenture Act.    



        (a)   This
Trust Agreement is subject to the provisions of the Trust Indenture Act that are required or deemed to be part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions. 


        (b)   The
Property Trustee shall be the only Trustee which is a trustee for the purposes of the Trust Indenture Act. 


        (c)   If
any provision hereof limits, qualifies or conflicts with another provision hereof which is required or deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed provision shall control. If any provision of this Trust Agreement modifies or excludes any provision of the Trust Indenture Act which may
be so modified or excluded, the latter provision shall be deemed to apply to this Trust Agreement as so modified or excluded, as the case may be. 


        (d)   The
application of the Trust Indenture Act to this Trust Agreement shall not affect the nature of the Trust Securities as equity securities representing undivided
beneficial interests in the assets of the Trust. 


        Section 10.12    Acceptance of Terms of Trust Agreement, Guarantee and Indenture.    


        THE
RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF
ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT
AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS. 


        Section 10.13    Holders are Parties.    



        Notwithstanding
that Holders have not executed and delivered this Trust Agreement or any counterpart thereof, Holders shall be deemed to be parties to this Trust Agreement and shall be
bound by all of the terms and conditions hereof and of the Trust Securities by acceptance and delivery of the Trust Securities. 


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        Section 10.14    Treatment of Trust as Grantor Trust and Debentures as Debt for Federal Income Tax
Purposes.    


        (a)   Holders
of Trust Securities by virtue of accepting delivery thereof, agree that the arrangement created by this Trust Agreement shall be treated as a grantor trust under
Subpart E of the Code for United States federal income tax purposes and that the Depositor and the Trustees shall be authorized to take any action consistent with such treatment. Neither the
Trustees nor the Depositor shall make any check-the-box election for the Trust to be treated as an association under Treas. Reg. § 301.7701-3 or
take any other action inconsistent with the treatment of the Trust as a grantor trust for all tax purposes. 



        (b)   Holders
of Capital Securities, by virtue of accepting delivery thereof, agree to treat the Debentures as debt for United States federal income tax purposes. 


        Section 10.15    Counterparts.    


        This
Trust Agreement may contain more than one counterpart of the signature page and this Trust Agreement may be executed by the affixing of the signature of each of the Trustees of one
of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single
signature page. 


[Signature page follows.] 


42













































 



					
	 	 	TCF FINANCIAL CORPORATION
	



 	

 	



By:	

 	



  








	 	 	Name:	 	James S. Broucek
	 	 	Title:	 	Senior Vice President and Treasurer
	

 	
 	

WILMINGTON TRUST COMPANY,

as Property Trustee
	

 	
 	

By:	
 	

 








	 	 	Name:	 	 
	 	 	Title:	 	 
	

 	
 	

WILMINGTON TRUST COMPANY,

as Delaware Trustee
	

 	
 	

By:	
 	

  








	 	 	Name:	 	 
	 	 	Title:	 	 
	

 	
 	

James S. Broucek, as Administrative Trustee
	

 	
 	

 








	

 	
 	

Christy A. Powers, as Administrative Trustee
	

 	
 	

  






















QuickLinks



Exhibit 4.4


AMENDED AND RESTATED TRUST AGREEMENT among TCF FINANCIAL CORPORATION, as Depositor, WILMINGTON TRUST COMPANY, as Property Trustee, WILMINGTON TRUST COMPANY, as Delaware Trustee, THE ADMINISTRATIVE TRUSTEES NAMED
HEREIN, and THE SEVERAL HOLDERS (AS DEFINED HEREIN) Dated as of August [ • ], 2008 TCF CAPITAL I



ARTICLE V TRUST SECURITIES CERTIFICATES

ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING


ARTICLE X MISCELLANEOUS PROVISIONS